Citation Nr: 0401523	
Decision Date: 01/15/04    Archive Date: 01/28/04

DOCKET NO.  02-11 857	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in 
San Juan, the Commonwealth of Puerto Rico


THE ISSUE

Whether new and material evidence has been submitted to 
reopen the claim of service connection for a psychiatric 
disorder.  



REPRESENTATION

Appellant represented by:	American Red Cross



ATTORNEY FOR THE BOARD

Christopher Maynard, Counsel



INTRODUCTION

The veteran had active service from January 12, to March 4, 
1976.  

In November 1981, the Board of Veterans Appeals (Board) 
denied service connection for schizophrenia.  

By rating action in May 1982, the RO found that new and 
material evidence had not been submitted to reopen the claim 
of service connection for schizophrenia.  The veteran and his 
representative were notified of this decision and did not 
appeal.  

This matter comes before the Board on appeal from a March 
2002 decision by the RO which found that new and material 
evidence had not been submitted to reopen the claim of 
service connection for schizophrenia.  

In light of the decision hereinbelow, the issue on appeal 
will be REMANDED to the RO via the Appeals Management Center 
(AMC) in Washington, DC.  VA will notify you if further 
action is required on your part.   


FINDINGS OF FACT

1.  Service connection for schizophrenia was last finally 
denied by an unappealed rating decision by the RO in May 
1982.  

2.  The additional evidence received since the May 1982 
rating decision is new and material and is so significant 
that it must be considered in order to fairly decide the 
merits of the claim.  


CONCLUSIONS OF LAW

1.  The May 1982 RO decision which denied service connection 
for schizophrenia is final.  38 U.S.C.A. § 7105(a) (West 
2002); 38 C.F.R. § 20.1103 (2003).  

2.  New and material evidence has been submitted to reopen 
the claim of service connection for a psychiatric disorder.  
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5108 
(West 2002); C.F.R. §§ 3.104(a), 3.156(a), 20.1105 (2003).  


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

During the pendency of this appeal, the Veterans Claims 
Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 
2096 (2000), was signed into law.  The Act and implementing 
regulations essentially eliminate the requirement that a 
claimant submit evidence of a well-grounded claim, and 
provides that VA will assist a claimant in obtaining evidence 
necessary to substantiate a claim but is not required to 
provide assistance to a claimant if there is no reasonable 
possibility that such assistance would aid in substantiating 
the claim.  It also includes new notification provisions. 

As a general rule, the change in the law is applicable to all 
claims filed on or after the date of enactment of the VCAA, 
or filed before the date of enactment and not yet final as of 
that date.  With respect to claims requiring new and material 
evidence, the VCAA states that, "[n]othing in this section 
shall be construed to require the Secretary to reopen a claim 
that has been disallowed except when new and material 
evidence is presented."  38 U.S.C.A. § 5103A(f).  Thus, it 
is necessary that the case be adjudicated initially by the 
Board on the issue of whether new and material evidence is of 
record to reopen the claim of service connection for a 
psychiatric disorder.  See Barnett v. Brown, 83 F.3d 1380, 
1383 (Fed. Cir. 1996); Marsh v. West, 11 Vet. App. 468, 471 
(1998); Smith (Irma) v. Brown, 10 Vet. App. 330, 332 (1997).  
If it is determined that such evidence has been presented, 
the claim will be reopened, and any required development 
would be undertaken.  See Elkins v. West, 12 Vet. App. 209 
(1999).  

It should also be noted that the regulation pertaining to the 
definition of new and material has been amended.  38 C.F.R. 
§ 3.156(a) (2003).  However, this amendment is effective only 
for claims filed on or after August 29, 2001.  In the instant 
case, a request to reopen the claim for a psychiatric 
disorder was received in February 2001.  Consequently, the 
current appeal will be decided under the old version of 
§ 3.156(a) as is outlined in the decision below.  

Finality

Service connection for schizophrenia was denied by the Board 
in November 1981, and a request to reopen the claim was last 
denied by the RO in May 1982.  Therefore, the laws and 
regulations governing finality and reopening of a previously 
disallowed claim is pertinent in the consideration of the 
issue on appeal.  

Under pertinent law and VA regulations, as interpreted by the 
United States Court of Appeals for Veterans Claims 
(hereinafter, "the Court"), the Board may reopen and review 
a claim which has been previously denied if new and material 
evidence is submitted by or on behalf of the appellant.  
38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2003).  

New and Material Evidence

In March 2002, the RO determined that new and material 
evidence had not been submitted the claim for service 
connection for schizophrenia.  The Board, in the first 
instance, must also rule on the matter of reopening a claim.  
The Board has a jurisdictional responsibility to consider 
whether it is proper for a claim to be reopened, .  Jackson 
v. Principi, 265 F.3d 1366 at 1369 (Fed. Cir. 2001) and 
Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996).  Thus the 
Board must consider whether new and material evidence has 
been submitted.

Pursuant to 38 C.F.R. § 3.156(a), new and material evidence 
means existing evidence not previously submitted to agency 
decision-makers.  Material evidence means existing evidence 
that, by itself or when considered with previous evidence of 
record, relates to an unestablished fact necessary to 
substantiate the claim.  New and material evidence can be 
neither cumulative nor redundant of the evidence of record at 
the time of the last prior final denial of the claim sought 
to be reopened, and must raise a reasonable possibility of 
substantiating the claim.  

Thus, if the newly presented evidence is not "new," the 
claim to reopen fails on that basis and no further analysis 
of the evidence is required.  Similarly, if "new" evidence 
is not "material," in the sense that, when considered by 
itself or in connection with evidence previously assembled, 
raises a reasonable possibility of substantiating the claim, 
the claim to reopen fails on that basis and the inquiry ends.  
38 C.F.R. § 3.156.  If the evidence is determined to be both 
new and material, VA reopens the claim and evaluates the 
merits after ensuring that the duty to assist has been 
fulfilled.  

The provisions of 38 U.S.C.A. § 5108 require a review of all 
evidence submitted by a claimant since the previously 
disallowed claim in order to determine whether a claim must 
be reopened.  See Evans v. Brown, 9 Vet. App. 273, 282-3 
(1996).  Furthermore, for purposes of the "new and 
material" analysis, the credibility of the evidence is 
presumed.  Justus v. Principi, 3 Vet. App. 510, 512-513 
(1992).  

In November 1981, the Board denied service connection for 
schizophrenia.  The pertinent evidence of record at the time 
of that decision included the service medical records, an 
August 1976 VA psychiatric examination report, numerous VA 
out- and inpatient treatment records from August 1976 to 
1979, two private psychiatric evaluation reports dated in 
July and November 1978, several lay statements from family 
and friends, and a transcript of a personal hearing at the RO 
in October 1978.  

In that decision, the Board determined that the there was no 
evidence of an acquired psychiatric disorder during the 
veteran's short period of military service.  Furthermore, 
while he was initially diagnosed with a psychosis 
(schizophrenia) within one year of discharge from service, he 
did not have the requisite 90-days of active service required 
for presumption of service incurrence of a psychosis under 
the governing law and regulations.  

In April 1982, the veteran requested that his claim of 
service connection for a psychiatric disorder be reopened.  
In May 1982, the RO found that the evidence added to the 
record, a December 1981 VA treatment report showing continued 
treatment for schizophrenia, was cumulative and redundant of 
information previously considered, and denied the request to 
reopen the claim.  The veteran and his representative were 
notified of this decision and did not appeal.  

The evidence added to the record since the May 1982 RO 
decision includes additional VA treatment records from 2000 
to 2001 and a February 2003 private psychiatric evaluation 
report.  

The private psychiatric report diagnosed post-traumatic 
stress disorder (PTSD) and marked paranoid characteristics 
with schizophrenia and provided an opinion relating those 
diagnoses to military service.  The opinion providing a nexus 
between schizophrenia and service is new and material, and is 
so significant that it must be considered in order to decide 
fairly the merits of the claim.  38 C.F.R. § 3.156.  Having 
decided that private medical report is new and material, 
there is no need to discuss whether the other evidence is 
likewise new and material as the claim will be reopened 
solely on the basis of this evidence.  


ORDER

To the extent that new and material evidence has been 
submitted to reopen the claim of service connection for a 
psychiatric disorder, the appeal to reopen is granted.  


REMAND

In view of the favorable decision by the Board that new and 
material evidence has been submitted to reopen the claim for 
a psychiatric disorder, the RO must now consider the issue on 
a de novo basis.  Additional development is required prior to 
adjudication of this issue.  

In the instant case, the veteran asserts that he was sexually 
assaulted by fellow soldiers shortly after he entered 
military service, and that his current psychiatric problems, 
including post-traumatic stress disorder (PTSD) are related 
to that incident.  As noted above, the veteran was diagnosed 
with schizophrenia several months after discharge from 
service, but was denied service connection by the Board on 
the grounds that there was no evidence of a psychiatric 
disorder in service and that he did not have the required 90 
days of active service for consideration of the presumption 
of service incurrence for a psychosis under 38 C.F.R. 
§ 3.307(a)(1).  

However, in addition to schizophrenia, the veteran's current 
diagnosis now includes PTSD which has been attributed to the 
claimed sexual assault in service.  PTSD is a neurosis, not a 
psychosis, and is not precluded from consideration of service 
incurrence by reason of the presumptive limitations of 
38 C.F.R. § 3.307.  In effect, the additional diagnosis 
provides a new basis of entitlement which has not been 
previously considered.  

Furthermore, in PTSD cases where the veteran asserts personal 
assault as the in-service stressor, VA has a heightened duty 
to assist in gathering evidence corroborating the in-service 
stressors in accordance with the provisions of VA 
Adjudication Manual M21-1.  Patton v. West, 12 Vet. App. 272 
(1999).  In such cases, M21-1 provides an extensive list of 
alternative sources competent to provide credible evidence 
that may support the conclusion that the event occurred.  See 
M21-1, part III, 5.14(c).  As there has been no development 
of the claim under M21-1, the Board finds that addition 
action must be take to ensure that the VA's duty to assist 
the veteran in the development of his claim has been complied 
with.  

In light of the discussion above, and to ensure full 
compliance with due process requirements, it is the decision 
of the Board that further development is necessary prior to 
appellate review.  Accordingly, the claim is REMANDED to the 
RO for the following action:  

1.  The RO must review the claims file 
and ensure that all notification and 
development actions required by the VCAA 
and implementing regulations are fully 
complied with.  Compliance requires that 
the veteran be notified, via letter, of 
any information, and any medical or lay 
evidence, not previously provided to the 
Secretary, that is necessary to 
substantiate the claim.  A general form 
letter, prepared by the RO, not 
specifically addressing the disability or 
disabilities at issue, is not acceptable.  
The RO must indicate which portion of 
that information and evidence, if any, is 
to be provided by the claimant, and which 
portion, if any, the Secretary will 
attempt to obtain on behalf of the 
claimant.  After the veteran and his 
representative have been given notice as 
required by 38 U.S.C.A. § 5103(a), (see 
also Quartuccio, supra), they should be 
given the opportunity to respond.  

2.  The RO should take appropriate steps 
to contact the veteran and obtain a 
detailed description of the events 
surrounding his claimed sexual assault 
during service.  The RO's inquiry should 
include possible sources listed in M21-1, 
part III, 5.14(c)(5).  The veteran should 
be as specific as possible as to the 
date, place, and circumstances of the 
incident, and the names of any 
individuals involved.  The veteran is 
advised that he may provide official 
copies of his high school transcripts or 
report cards, and a brief explanation for 
his decision to drop out of high school.  

3.  The RO should also obtain and 
associate with the claims folder the 
veteran's military personnel file (DA 
Form 20) and all records pertaining to 
any disciplinary actions.  All available 
administrative actions or reports 
concerning his early discharge from 
service should be obtained.  

4.  The veteran should be afforded a VA 
psychiatric examination to determine the 
correct diagnosis and, if feasible, date 
of onset of any identified psychiatric 
disorder, to include whether he has PTSD 
under the criteria in DSM IV.  Prior to 
the examination, the claims folder must 
be made available to the physician for 
review.  A notation to the effect that 
this record review took place should be 
included in the report of the examiner.  
All appropriate testing should be 
undertaken in connection with the 
examination.  The psychiatrist should 
describe all findings in detail and 
provide a complete rationale for all 
opinions offered.  

If PTSD is diagnosed, the physician 
should clearly identify the claimed 
events which are considered stressors 
supporting the diagnosis, and fully 
explain why the stressors are considered 
sufficient under DSM-IV.  The physician 
should describe all findings in detail 
and provide a complete rationale for all 
opinions offered.  Furthermore, the 
examiner should render an opinion as to 
whether the presently diagnosed 
schizophrenia was present in service. 

5.  The veteran must be given adequate 
notice of the date and place of any 
requested examination.  A copy of all 
notifications must be associated with the 
claims folder.  The veteran is hereby 
advised that failure to report for a 
scheduled VA examination without good 
cause shown may have adverse effects on 
his claim.  

6.  After the requested development has 
been completed, the RO should review the 
veteran's claim.  The RO should 
adjudicate the merits of the claim based 
on all the evidence of record and all 
governing legal authority, including the 
VCAA of 2000 and implementing 
regulations, and any additional 
information obtained as a result of this 
remand.  If the benefits sought on appeal 
remain denied, the veteran and his 
representative should be furnished a 
Supplemental Statement of the Case and 
given the opportunity to respond thereto.  
The RO is advised that they are to make a 
determination based on the law and 
regulations in effect at the time of 
their decision, to include any further 
changes in VCAA or other applicable 
legislation.  

Thereafter, the case should be returned to the Board for 
further appellate review, if in order.  The Board intimates 
no opinion, either legal or factual, as to the ultimate 
outcome of this case.  The veteran need take no action unless 
otherwise notified.  The veteran has the right to submit 
additional evidence and argument on the matter or matters the 
Board has remanded to the regional office.  Kutscherousky v. 
West, 12 Vet. App. 369 (1999).  

This claim must be afforded expeditious treatment by the RO.  
The law requires that all claims that are remanded by the 
Board of Veterans' Appeals or by the United States Court of 
Appeals for Veterans Claims for additional development or 
other appropriate action must be handled in an expeditious 
manner.  See The Veterans' Benefits Improvements Act of 1994, 
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 
38 U.S.C.A. § 5101 (West 2002) (Historical and Statutory 
Notes).  In addition, VBA's Adjudication Procedure Manual, 
M21-1, Part IV, directs the ROs to provide expeditious 
handling of all cases that have been remanded by the Board 
and the Court.  See M21-1, Part IV, paras. 8.43 and 38.02.  




		
	RENÉE M. PELLETIER
	Veterans Law Judge, Board of Veterans' Appeals



 Department of Veterans Affairs

YOUR RIGHTS TO APPEAL OUR DECISION

The attached decision by the Board of Veterans' Appeals (BVA or Board) is 
the final decision for all issues addressed in the "Order" section of the 
decision.  The Board may also choose to remand an issue or issues to the 
local VA office for additional development.   If the Board did this in your 
case, then a "Remand" section follows the "Order."  However, you cannot 
appeal an issue remanded to the local VA office because a remand is not a 
final decision. The advice below on how to appeal a claim applies only to 
issues that were allowed, denied, or dismissed in the "Order."
If you are satisfied with the outcome of your appeal, you do not need to do 
anything.  We will return your file to your local VA office to implement 
the BVA's decision.  However, if you are not satisfied with the Board's 
decision on any or all of the issues allowed, denied, or dismissed, you 
have the following options, which are listed in no particular order of 
importance: 
?	Appeal to the United States Court of Appeals for Veterans Claims 
(Court)
?	File with the Board a motion for reconsideration of this decision
?	File with the Board a motion to vacate this decision 
?	File with the Board a motion for revision of this decision based on 
clear and unmistakable error. 
Although it would not affect this BVA decision, you may choose to also: 
?	Reopen your claim at the local VA office by submitting new and 
material evidence. 
There is no time limit for filing a motion for reconsideration, a motion to 
vacate, or a motion for revision based on clear and unmistakable error with 
the Board, or a claim to reopen at the local VA office.  None of these 
things is mutually exclusive - you can do all five things at the same time 
if you wish.  However, if you file a Notice of Appeal with the Court and a 
motion with the Board at the same time, this may delay your case because of 
jurisdictional conflicts. If you file a Notice of Appeal with the Court 
before you file a motion with the BVA, the BVA will not be able to consider 
your motion without the Court's permission. 

How long do I have to start my appeal to the Court?  You have 120 days from 
the date this decision was mailed to you (as shown on the first page of 
this decision) to file a Notice of Appeal with the United States Court of 
Appeals for Veterans Claims.  If you also want to file a motion for 
reconsideration or a motion to vacate, you will still have time to appeal 
to the Court.  As long as you file your motion(s) with the Board within 120 
days of the date this decision was mailed to you, you will then have 
another 120 days from the date the BVA decides the motion for 
reconsideration or the motion to vacate to appeal to the Court.  You should 
know that even if you have a representative, as discussed below, it is your 
responsibility to make sure that your appeal to Court is filed on time.

How do I appeal to the United States Court of Appeals for Veterans Claims?  
Send your Notice of Appeal to the Court at:

Clerk, U.S. Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, DC 20004-2950

You can get information about the Notice of Appeal, the procedure for 
filing a Notice of Appeal, the filing fee (or a motion to waive the filing 
fee if payment would cause financial hardship), and other matters covered 
by the Court's rules directly from the Court. You can also get this 
information from the Court's web site on the Internet at 
www.vetapp.uscourts.gov, and you can download forms directly from that 
website.  The Court's facsimile number is (202) 501-5848. 

To ensure full protection of your right of appeal to the Court, you must 
file your Notice of Appeal with the Court, not with the Board, or any other 
VA office. 

How do I file a motion for reconsideration? You can file a motion asking 
the BVA to reconsider any part of this decision by writing a letter to the 
BVA stating why you believe that the BVA committed an obvious error of fact 
or law in this decision, or stating that new and material military service 
records have been discovered that apply to your appeal. If the BVA has 
decided more than one issue, be sure to tell us which issue(s) you want 
reconsidered. Send your letter to: 
Director, Management and Administration (014)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420

VA 
FORM
JUN 
2003 
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4597
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CONTINUED



Remember, the Board places no time limit on filing a motion for 
reconsideration, and you can do this at any time. However, if you also plan 
to appeal this decision to the Court, you must file your motion within 120 
days from the date of this decision. 

How do I file a motion to vacate? You can file a motion asking the BVA to 
vacate any part of this decision by writing a letter to the BVA stating why 
you believe you were denied due process of law during your appeal. For 
example, you were denied your right to representation through action or 
inaction by VA personnel, you were not provided a Statement of the Case or 
Supplemental Statement of the Case, or you did not get a personal hearing 
that you requested. You can also file a motion to vacate any part of this 
decision on the basis that the Board allowed benefits based on false or 
fraudulent evidence.  Send this motion to the address above for the 
Director, Management and Administration, at the Board.  Remember, the Board 
places no time limit on filing a motion to vacate, and you can do this at 
any time. However, if you also plan to appeal this decision to the Court, 
you must file your motion within 120 days from the date of this decision. 

How do I file a motion to revise the Board's decision on the basis of clear 
and unmistakable error? You can file a motion asking that the Board revise 
this decision if you believe that the decision is based on "clear and 
unmistakable error" (CUE).  Send this motion to the address above for the 
Director, Management and Administration, at the Board. You should be 
careful when preparing such a motion because it must meet specific 
requirements, and the Board will not review a final decision on this basis 
more than once. You should carefully review the Board's Rules of Practice 
on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified 
representative before filing such a motion. See discussion on 
representation below. Remember, the Board places no time limit on filing a 
CUE review motion, and you can do this at any time. 

How do I reopen my claim? You can ask your local VA office to reopen your 
claim by simply sending them a statement indicating that you want to reopen 
your claim.  However, to be successful in reopening your claim, you must 
submit new and material evidence to that office. See 38 C.F.R. 3.156(a). 

Can someone represent me in my appeal?  Yes. You can always represent 
yourself in any claim before VA, including the BVA, but you can also 
appoint someone to represent you.  An accredited representative of a 
recognized service organization may represent you free of charge.  VA 
approves these organizations to help veterans, service members, and 
dependents prepare their claims and present them to VA. An accredited 
representative works for the service organization and knows how to prepare 
and present claims. You can find a listing of these organizations on the 
Internet at: www.va.gov/vso.  You can also choose to be represented by a 
private attorney or by an "agent." (An agent is a person who is not a 
lawyer, but is specially accredited by VA.) 

If you want someone to represent you before the Court, rather than before 
VA, then you can get information on how to do so by writing directly to the 
Court.  Upon request, the Court will provide you with a state-by-state 
listing of persons admitted to practice before the Court who have indicated 
their availability to represent appellants.  This information is also 
provided on the Court's website at www.vetapp.uscourts.gov. 

Do I have to pay an attorney or agent to represent me?  Except for a claim 
involving a home or small business VA loan under Chapter 37 of title 38, 
United States Code, attorneys or agents cannot charge you a fee or accept 
payment for services they provide before the date BVA makes a final 
decision on your appeal. If you hire an attorney or accredited agent within 
1 year of a final BVA decision, then the attorney or agent is allowed to 
charge you a fee for representing you before VA in most situations.  An 
attorney can also charge you for representing you before the Court.  VA 
cannot pay fees of attorneys or agents. 

Fee for VA home and small business loan cases:  An attorney or agent may 
charge you a reasonable fee for services involving a VA home loan or small 
business loan.  For more information, read section 5904, title 38, United 
States Code. 

In all cases, a copy of any fee agreement between you and an attorney or 
accredited agent must be sent to: 

Office of the Senior Deputy Vice Chairman (012)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420

The Board may decide, on its own, to review a fee agreement for 
reasonableness, or you or your attorney or agent can file a motion asking 
the Board to do so. Send such a motion to the address above for the Office 
of the Senior Deputy Vice Chairman at the Board. 


VA 
FORM
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2003 
(RS) 
 
4597
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